structing the jury in the language contained in the last part of the sixth subdivision of the court's charge, and in modifying the defendant's request to charge as therein contained. The part of the charge here complained of is as follows:

"I am asked by the plaintiff to charge you that in this case several acts of negligence are charged in the plaintiff's declaration, but it is not necessary for the plaintiff to prove all of the acts of negligence charged, for if any unlawful act of defendant is charged which resulted in the injury to the plaintiff, complained of, he is entitled to recover, although the declaration may have charged other acts of defendant as negligence, which have not been proved. There is no question about that, gentlemen of the jury. If it was the negligence to sharpen and set the saw after a proper notice had been given, and a reasonable time had elapsedif that is the cause of the injury, and you are satisfied by a preponderance of the proof that that is the cause of the injury-then you, unquestionably, gentlemen of the jury, should find a verdict for the plaintiff in this case, provided you find that his own conduct. did not contribute to the injury."

Counsel for defendant urge that such practice should be condemned, and that the purpose of a declaration is to apprise the defendant of the case he must meet; that to permit the declaration to charge facts known to the plaintiff to be false, to allege facts without any expectation of sustaining the same, can be done only for the purpose of misleading and deceiving a defendant in the preparation of his defense, and is improper and should be condemned. We have repeatedly held that it is not necessary for a plaintiff to prove all of the acts of negligence charged; that, if any unlawful neglect of defendant is charged which resulted in the injury to the plaintiff complained of, he is entitled to recover, although the declaration may have charged other acts of defendant as negligent which were not proven. See Lepard v. Railroad Co., 166 Mich. 373, at page 380 (130 N. W. 668, 40 L. R.

A. [N. S.] 1105), where the cases are cited. We are not able to find that counsel at any time during the trial raised any objection to the sufficiency of the declaration, or claimed that any of the testimony offered by the plaintiff was inadmissible under the declaration.

2. The next assignment of error discussed by counsel is the first; that the court erred in excluding the following question in the examination of the witness Frank Le Fleur:

"Then Mr. Bowles deliberately said something in his declaration that was not true when he set up the fact that you had been told to go over to the saw without any instruction how to use it, is that it?"

The record shows that when this question was objected to by plaintiff's counsel, the court sustained the objection, and no exception was taken by defendant's counsel to the ruling. We must therefore hold that the matter is not before us.

3. Defendant's counsel in their brief say:

"At the trial plaintiff relied entirely upon the defect claimed to have been in the saw, in that it was dull and out of set, and his hand was drawn against the saw by reason of the board being thrown up from the table. * * *

"Plaintiff knew the condition of the saw, but seeks to remove his case from the rule of assumption of risk by a claim that the foreman had been advised of the condition of the saw, and had given certain promises respecting its repair. There is nothing in the declaration to apprise defendant of this claim or theory of plaintiff. * * *

"The question, therefore, is whether or not plaintiff has placed himself within the exception to the rule respecting assumption of risk on the part of a workman. We submit that he has not."

An examination of the record statisfies us that the case was tried upon the theory that the plaintiff was free from contributory negligence, because at the time

he was operating the saw in question in its defective condition, which was known to him, under a promise from his employer to repair, which promise he relied on. While the declaration was not as full as it might well have been, no question was raised as to its sufficiency at the trial.

Counsel for defendant cite Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145). In that case there was no positive promise to repair the machine, but the plaintiff was told "that it would be fixed as soon as it could be reached in the course of repairs." We think that the case is distinguished from the instant case. We have already set out the language of the foreman as testified to by the plaintiff. The millwright testified that the foreman said "he would look after it right away; he told him to go back to work; that he would fix it right away."

We do not understand that in order for a plaintiff to recover in such a case he must continue to work under the supposition on his part that the repairs have been made.

The rule is stated in Beach on Contributory Negligence (2d Ed.), § 372, as follows:

"If, when the master is notified of the defect in the machinery or of the incompetence of the servant, he promises to remedy it within a reasonable time, the servant will not, as a matter of law, be presumed to have consented to it, or to have waived his rights by remaining for such reasonable time in the service; but mere complaint to the master, unless a promise to repair is made, will not justify the servant in continuing to expose himself to the danger."

This doctrine is supported by many cases in this State. Lyttle v. Railway Co., 84 Mich. 289 (47 N. W. 571); Roux v. Lumber Co., 85 Mich. 519 (48 N. W. 1092, 13 L. R. A. 728, 24 Am. St. Rep. 102); Krohn v. Joseph N. Smith & Co., 151 Mich. 247 (114 N. W. 1017); Brouseau v. Supply Co., 158 Mich. 312 (122

N. W. 620, 27 L. R. A. [N. S.] 1052); Prisel v. Coney, 168 Mich. 602 (134 N. W. 989). See note to Illinois Steel Co. v. Mann, 40 L. R. A. 781 (170 Ill. 200).

Defendant's counsel also cite Hough v. Railway Co., 100 U. S. 213. We call attention to the following language of the court in that case:

"If the engineer, after discovering or recognizing the defective condition of the cowcatcher or pilot, had continued to use the engine, without giving notice thereof to the proper officers of the company, he would undoubtedly have been guilty of such contributory negligence as to bar a recovery, so far as such defect was found to have been the efficient cause of the death. He would be held, in that case, to have himself risked the dangers which might result from the use of the engine in such defective condition. But 'there can be no doubt that, where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept'" (citing cases).

4. Defendant claims that the court erred in refusing to give defendant's tenth request to charge, which was to the effect that the great weight of the evidence was that the saw was in proper condition, sharp, and properly set, and that the verdict must therefore be for the defendant. The plaintiff and defendant's millwright both testified that the saw was dull and out of set at the time it was claimed the complaint was made by the plaintiff, and the promise to repair was made by defendant's foreman. On the other hand, the foreman and another witness for defendant testified that the saw was not out of repair at the time of the accident, and the foreman denied ever having had any conversation with the plaintiff relating to the saw. This conflict of testimony raised a question of fact for the jury, and we do not think that the court erred in

refusing to give said request. There was no motion for a new trial.

We find no reversible error in the record, and the judgment below is affirmed.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, KUHN, OSTRANDER, and BIRD, JJ., concurred.

MILLER v. BEARDSLEE.

1. DEEDS-DESCRIPTION-EVIDENCE.

A deed of real property described as the "west half of the northeast quarter, also the east half of the northwest quarter, except 18 acres off the southwest corner; also the northwest corner of the west half of the southeast quarter lying north of property of Michigan Central Railroad Company," was defective for omitting the section, town and range, although it mentioned the name of the township in which the land was situated; evidence that the railroad company owned a right of way in several sections in the township named left the last portion of the description ambiguous.

2. SAME EQUITY-REFORMATION OF INSTRUMENTS.

Equity will not correct the deed of a deceased grantor who received no consideration for the conveyance.

3. SAME DELIVERY-ESCROW.

Testimony that decedent instructed her attorney in fact that if a settlement of certain business transactions on the part of the husband of one of her heirs should be made with her, she wished nothing to come of a voluntary deed placed in escrow with him, that the directions were given an hour after the execution of the instrument, held, to show a single transaction and to render the delivery incomplete or insufficient to pass title after the death of the grantor.